Tag Archives: Points for determination in appeal

C.P.C. O. 41, R. 31: Mere formulation of a point by the first Appellate Court as to “Whether the judgment of the trial court is correct, legal or valid” is a hopeless wrong method

The judgment of Appellate Court shall state the points for determination. Merely asking the question as to whether the judgment of the Court below is correct, legal or valid is hopelessly an inadequate method of meeting the requirement of this legal provision. The judgments of the Appeal Courts below the points for determination being formulated in the following manner :

(1) Is the judgment of the Court below liable to be set aside?
(2) Is the decree of the Court below liable to be interfered with?
(3) Is the decree of the Court below valid?
(4) Is the decree of the Court below proper and legal?

These are some of the ways in which the Courts of first appeal have tended to formulate the points for determination.
This manner ignores that O. 41, R. 31(a) requires the appellate Court to state in its judgment the points that arise for determination after the arguments are advanced. Asking such vague questions as mentioned above will not lead to the pronouncement of a well considered and reasoned judgment. Imagine a Court of first appeal being confronted with the judgment where an issued is framed as to whether the suit of the plaintiff should be decreed. All concerned will be at sea if a suit is decided on an issue framed in that manner. As early as in Mhasu v. Davalat, (1905) 7 Bom LR 174, dealing with a similar provision in the earlier Civil Procedure Code, it has been pointed out that the object of the Legislature in making it incumbent on an appellate Court to raise points for determination was to clear up the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions of the latter. The points which must arise for determination by a court of first appeal must cover all important questions involved in the case and they should not be general and vague. It is a matter of almost textbook knowledge that the exact questions which arise in the appeal and require determination must be stated in the judgment. “It is not sufficient to state the point to be determined in appeal whether or not the decision is consistent with the merits of the case.” The point so stated is hardly a point for determination as contemplated in Order 41 Rule 31 of the Code. The learned Judges of the Courts of first appeal should not approach the appeals merely from the point of speedily disposing of the same.-Anita M. Harretto Vs. Abdul Wahid Sanaullah, AIR 1985 Bom 98